Los Angeles daily herald., 1887-01-20

anr liens should not be paid by said Cob
| until the same was finally adjusted by lit
CATION, or in any other manner.
XII.
Defendant Cohn has, since receiving sal
conveyance, settled, adjusted ana paiu III
ferent liens, incumbrances anu aHre tit,e :
claims, in order to secure ciear title .
said lands and for that purpose nas pai
one hundred thousand dollars ana more
all of which concerns his own private Duss :
ness, and with which plaintiii. heither y
agreement, nor by any existing iacts, ma
ANYTHING to do, nor has he any 1ntere'
| therein. There is nothing due pialnti
| from defendants or from either on them
reason of any transactions involved III thi
litigation.
Plaintiff is an old man, over eighty year
old and does not speak or understand Tn
English language, but his mind Is, ana dul
ing all this transaction was SOUND, MS lnte
ligence good, and of this transactl0n a
hereinbefore lound, he had full knoWieog
not mislead or deceived by defendants o
either of them, in any respect whatever.
XIV.
Defendants Brodrick and Prayer were moi
neither was either of them, participants Il
any fraudulent purpose or transaction Sc
forth in the complaint, but they have an IN
terest in premises conveyed by plaintiff
XVI.
The said deed of plaintiff to defendan
Cohn, was and is absolute on its face, bu
the same was not intended nor was 1t IL
fact, a mortgage to secure the repayment tt
said Cohn of the sums advanced or thai
might be advanced by him, or any othel
sum, under any agreement whatever, moi
was the same so understood by all the par
ties, nor by any of them.
XVII.
Defendants plea of the statute of Limita
tiOns is not supported by the evidence, and
plaintiff s action is not barred by the pro
visions of sections 3lS and 219 of the Code
OF Civil Procedure of this State, nor by
any laws Of this State.
AS conclusions of the law:
First-The plaintiff is not entitled to re-
conveyance OF said premises, or any part
thereof, and is not entitled to take any
thing by this action.
Second-Defeudants are entitled to have
aud recover of plaintiff their costs, to be
taxed.
Let judgment be entered accordingly.
January 18th, 1887.
WIN A. CHENEY, Judge.
In the Superior Court of the county of Los
Angeles, Cal. Pho Pico VS.. B. Cohn ct al.
No. 1872.
OPINION OF THE COURT.
This is an action on q complaint alleging
that on the 7th day of April, 1883, the plain
tiff, Pico, was the owner of three certain
pieces of property, known generally as the
Kanchito the PicO House and the bank
building; that on the same day he made a
conveyance absolute in form and terms OF
the said properties to defendant Cohn
that the agreement was, tnat any time be-
fore the 1st Of July, 1888, the plaintiff might
redeem the same aud have a reconveyance
made to him upon the payment of S65,00o,
and such other sums as the defendant might
have advanced and paid out for him, plain
tiff. There are allegations of fraud, in that
the complaint charges Cohn with obtaining
the deed by undue influence, taking advan-
tage of plaintiffs distress and trouble, and
by making promises which h5 never in
tended TO keep and fulfill.
rhe issues of fact raised by the pleadings
are simpls enough of statement. but not SO
simple of settlement. They may be briefly
stated as follows:
LIST. Was there such an agreement be-
tween the parties?
ID. Was the deed absolute in form or pro-
cured by fraud?
1t is more convenient to consider the last
proposition first. The prominent allegation
of fraud Is in su bstance as follows: COhn
represented to Pico that he was dealing in
good faith with him, and that he (plaintiff)
could safely rely upon the said DEFENDANT S
honesty, and so forth; that 1t was sufficient
that the matter was understood by them,
and that it was, therefore, unnecessary to
reduce the agi cement to writing until after
the deed was executed, but that he would
then give him the proper writing. That, at
the request of said CehD, and ou being told
by the said COhn that it was necessary for
him to execute the assignment (reieIring
to the assignment of leases), iii order to get
an assignment of the leases from LO )mis,
he executed the assignment.
1t is sufficient to say that the evidence
fails to disclose to the Court that COhn ever
told Pico it was unnecessary to reduce the
agreement to writing until after the deed
was executed; on the contrary, the plaintiff
rciterates the statement THAT they would
exchange papers, that he would make a
counter document with me, that he would
sign to me and lwould sign to him." There
can be no question as 10 this evidence.
Pico makes 1t clear enough that this is his
present Interpretation of the contract.
This agreement is stead dfastly denied by
the defendant. The evidence is also to the
effect that 1t was not COhn who requested
pico to assign the leases, but on. one OF the
attorneys of Pico. And in this connection
it may be well to comment upon the fact
that the plaintiff. Pico. testifies to the effect
that, without any question, without know
ing what he was signing. he assigned
very day of the execution OF the deed to
Cohn, simply because his attorney. Col.
Smith, instructed him to do 1t.
l can find in this transaction evidence
tnht the mllu Ol rlCO HhI 3eus as ain
ed, poisoned against his attorneys, either
by Cohn or Johnson; on the contrary, it is
evidence of IA blind faith in the j..
Undue influence is defined in section 1915
of Civil Codes of California, as follows:
"lst. In the use by one In whom conf
. real or apparent authority over him, of
such confidence or authority for the pur
pose of obtaining an unfair advautig over
him.. I'd. In taking an unfair advantage OF
another's weakness of mind; or Sd. In tax
Ing grossly oppressive and unfair advan-
tage of anOtheT's necessities or distress"
Glancing at the parties and their sur
we do find such evidence as
would warrant the court in assuming such
confidence reposed in Cohn as would be
the basis of finding that an unfair advan-
tage was taken of Pico by reason OF that
confidence? 1t does not appear that the
re ations between Cohn and Pico were very
much different from those frequently exist
one who has it and desires to put 1t out to
advantage. He does not appear to have
been close confidential friend of PicO's,
and had told Pico that's loan to him meant
a lawsuit The testimony of PicO is that he
had many lawsuits with Pancho Johnson I,
Of whom it is claimed that he misled an d
deceived pico for Cohn, and that he ha d
In one of them charged johnson with frau
toward him.
Pico is an old man, SO years OF age, but
ne tAutulteu Wullc Ou tuo WleucSs TIA III N
clear comprehension. an acute understand
ing and a fresh, retentive memory OF this
case, its intricacies. and a full lapprehen sion
of els relation to it. There was no testi-
mony to show any unusual weakness, i'm
becility or senility; but. on the contrary the
Court has seldom or never before listened
to an old man upon the witness stand who
seemed SO bright mentally and SO active
physically. can see no reason why he
should be treated in that respect in any diff
ferent manner from any ordinary itigant
Nothing appears SO forclbly to the Court as
the weakness or imbecility of an old man
or woman, and no evidence would be
weighed more carefully than the testlm ony
gwen by witness so unfortunately bur
dened; but there is no call for any unus-
ual allowance to be made in this case, SO
far as regards the weakness, either mental
or physical. of Pico As he is now the
Court will presume he was in 1888. in the
absence of evidence to the contrary; of
course, considering his anxiety, which
could hardly have been greater then than
now.
That Pico was iu distress and necessitous,
is perhaps beyond dispute. Every thing he
had in the world seems to have been mort
gagged heavily, and his ownership of one of